The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

At the Constitutional Convention of 1787 the debate that produced this provision came to a head on August 21 and sustained tense development until its resolution on August 25 in a unanimous vote (nem contradicente) that succeeded several divided votes that preceded the eventual compromise. This short narration, however, conceals a tortured and tense struggle that emerged from the debates over democratic representation, permissible forms and apportionment of taxation, and the wisdom and morality of slavery itself. What occurred, in short, is that the Convention elected to affirm national authority to prohibit the importation of slaves but to limit any tax on this particular import to a modest sum, in recognition of strenuous and unyielding objections especially from South Carolina and Georgia to the exercise of any limit upon their discretion in the matter of slavery, even after having been granted a bonus effect by the counting of three-fifths of the total number of slaves in the calculation of representation in the House of Representatives.

This essay is too limited in space to permit unfolding the full dimensions of the debate in the Constitutional Convention. We urge readers to recur to the Notes of Debates in the Federal Convention of 1787 Reported by James Madison for a thorough review of the debate in order to place in context the sometimes surprising positions of delegates as varied as Oliver Ellsworth, Luther Martin, and Roger Sherman as well as those of James Wilson, Gouverneur Morris, James Madison, and Alexander Hamilton. A more general view of the question of slavery is at the following link: http://www.williambarclayallen.com/chapters/new_birth_of_freedom.pdf.

As for the meaning of the constitution’s limitation on the power to import slaves, the most efficient way to comprehend it is to review the story of its implementation under the new government.

The first major debate over constitutional interpretation within the Congress took place in the House of Representatives on May 13, 1789. The subject was slavery, and it carried with it all of the ambiguous assumptions which freighted the several compromise provisions on the subject in the Constitution. It is to be remembered that the slave trade clause (Art. I, sec. 9), by which slavery could not be prohibited by Congress until the year 1808, but by which the Congress could impose an import tax on slaves, produced contrary interpretations even at the time, ranging from the more familiar southern claims that “we got all that we could” on behalf of slavery, to the less well known but extraordinary claim by James Wilson, that

I will tell you what was done, and it gives me high pleasure, that so much was done. . . [B]y this article after the year 1808, the congress will have the power to prohibit such importation, notwithstanding the disposition of any state to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind of gradual change which was pursued in Pennsylvania.i

The debate that occurred within the House of Representatives shows how far the hopeful interpretation prevailed over the shameful interpretation. On the surface it seems that the shameful interpretation prevailed, for the House voted by a large majority not to impose the constitutionally permitted impost on slaves. Further investigation reveals, however, that the vote was carried primarily by the northern and eastern antislavery votes, cast by those acting on the principle enunciated by men such as Fisher Ames and Roger Sherman that “no one appeared to be prepared for the discussion.”

Josiah Parker of Virginia introduced and pushed the measure, even to the point of eliciting a momentary attempt at a positive good argument for slavery from Jackson of Georgia. It was James Madison, however, who was most prepared to discuss the matter and most reluctant to yield to counsels of caution on a matter which others feared could abort the Union. His comments in this debate underscore his prior resort to slavery in order to move the Convention toward a Constitution almost two years earlier, for in 1789 the very existence of the Union weighs heavily in his reflections and promises the opportunity to act upon the question.

I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion . . . There may be some inconsistency in combining the ideas which gentlemen have expressed, that is, considering the human race as a species of property; but the evil does not arise from adopting the clause now proposed; it is from the importation to which it relates. Our object in enumerating persons on paper with merchandise, is to prevent the practice of treating them as such . . .

The dictates of humanity, the principles of the people, the national safety and happiness, and prudent policy, require it of us . . . I conceive the Constitution, in this particular, was formed in order that the Government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. . .

It is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves . . . [I]f there is any one point in which it is clearly the policy of this nation, so far as we constitutionally can, to vary the practice obtaining under some of the state governments, it is this.

To Madison, it appears, the slavery option was such that it could, and should, be subject to calculated disincentives. An analysis of the vote on this measure, in a House of 59 representatives, ten of whom were present in the Constitutional Convention, reveals a preponderant disposition to treat slavery as an option to be discouraged but nevertheless a matter sufficiently sensitive as to make that difficult.

The next implementation event of the Founding era is the manner in which, when the constitutional prohibition had expired, the international slave trade was prohibited. The President and his Secretary of State initiated the process in 1807 with some apparent pleasure. They encountered a difficulty, however, which no one had anticipated. It centered on the question of what to do with any contraband (that is, ships and slave cargo) that may be apprehended. Jefferson’s original proposal envisioned a traditional disposal in the interest of the government. But other parties, especially Quakers, pointed to the grand paradox that would involve the United States in selling Africans as a means of denying that privilege to American citizens in the name of the rights of humanity. Madison’s speech of 1789—we treat persons as property in law in order to be able to prevent their being treated as property in practice—resonated loudly. It quickly became clear that Jefferson’s proposal involved a mere oversight. Yet, it was immensely difficult to discern what else might be done.

The counterproposal, that the Africans be freed rather than sold, was the immediate cause which touched off heated debate in 1807, but that debate, above all in the House of Representatives, produced the first compromise on slavery admitting the existence of irreconcilable differences between north and south. Here, for the first time, there was an explicit threat of civil war over the institution of slavery, and an accommodation which recognized that “Easterners” must not be asked to turn their backs on the Founding and principles of humanity, while “Southerners” must not be asked to condemn their own way of life. Therefore, the northern proposal to free the cargo within the United States and even within the slave states, was amended, first, to freeing them only in the north (i.e., indenturing them for a term of years at a stipulated wage), and ultimately, to remanding them on such provisions as the states might make, with only a tacit understanding that they were not to be dealt with as property.

It is interesting to speculate about what might have eventuated had Jefferson and Madison reflected initially on the impropriety of proposing legislation to handle the Africans as contraband. They may well have discovered the key whereby to unlock the door to the interstate commerce power as a device for regulating slavery. Not only did they not envision such a debate in 1807, however, but more importantly no one else did. Not even the Quakers, whose sharp-sightedness prevented a moral catastrophe, applied their principles in this way. It seemed in 1807 that no one at all, whether defender of slavery or abolitionist, looked at the “migration” language of Article I, section 9 as a probable means to resolve this difficulty.

This lends powerful credence to Madison’s 1819 claim that the language of the migration portion of the slave trade clause did not apply to slaves, though it may have regarded free blacks.ii His further remark, to the effect that any attempt so to construe it would have caused a brouhaha, helps explain the absence of recourse to it in 1807. As noted, the mild debate which did eventuate in 1807 produced threats of secession and war. Accordingly, Madison simply maintained that public opinion would not have abided such a turn, pointing to the one theme he consistently enunciated throughout his career, namely, the necessity of consent, not only to institute the government but to institute the fundamental change envisioned. This Madison explained repeatedly, as he did to Robert Evans in 1819.iii For Madison, the key to this progressive regime was consent, the index of which was public opinion. Whatever was to be accomplished had to be accomplished by that medium. So fervently did he believe this that he not only subordinated abolition to it, but, as he expressly recounted, all his labors to form the Democratic-Republican Party were predicated on that premise.

While public opinion in 1807 countenanced the prohibition of the slave trade, it did not countenance federal abolition of slavery. In the end, for Madison, the theory of republicanism is not a theory about institutional relations; it is a theory about the dependence of power on opinion. “Changes” in his views all took place at the surface, because, like planets, ideas about constitutionality wander about a fixed sun.iv

Efforts to implement Article I, Section 9, Clause 1, therefore, reveal a mosaic that captures all of the dimensions of the role of slavery and race in American politics. That role must be considered against the backdrop of the principles of the regime, because actions touching upon slavery and race bear heavy implications for those principles, and vice versa. This does not result from any cultural or traditional pattern so much as from the conscious choices with which Americans wrestled at every turn in our nation’s history, up to and including the decisions of the present generation.

It is especially obvious in the 1807 struggle over the prohibition of the slave trade: From the moment that slavery was in any degree limited, there arose to replace it the problem of how to handle the question of race. The answer to that question rests, in turn, not only on the fact that the consciously chosen principles of the regime entail equality and liberty for all humans but, far more importantly, on the question whether they require an open, heterogeneous society. The decisions that were made on this question in the aftermath of the War of American Union, in the form of the post-war amendments and civil rights legislation, indicate a positive response to the latter. But how far was that also true at the time of the Founding itself?

While it is inaccurate to assert that no one prior to the last half of the nineteenth century imagined an interracial society founded on the principles of the Declaration of Independence, that question is of minimal concern here. First, it is of minimal concern because it is subordinate to the question of whether the Declaration was understood to include all human beings without regard to the practical social implications of that principle. Second, it is of minimal concern because the status of slavery and race under the Constitution or regime—and how to legislate in regard to it—is and has been a single question. Madison’s concern to avoid the “imbecility” of a country filled with slaves does not require the corollary of turning slaves into free citizens in the republic. As the 1807 slave trade debate reveals, however, that is the very question which arises the moment the freedom of the African is conceded. Hence, the debate was in fact a debate about whether and how to integrate Africans within the United States. The fact that Americans posed the same kind of question then and now points the way to an understanding of the dilemma we now face.